⇒ The common law provides a means by which individuals can challenge the legality of decisions, acts and omissions done by public bodies (judicial review).
⇒ So far, we have identified two different bases or ‘grounds’ for such review:
⇒ Proving that a body has acted irrationally is hard - and indeed harder when it comes to certain public bodies with broad discretion or who enjoy the implicit or explicit support of Parliament (R v Secretary of State for the Environment, ex parte Nottinghamshire County Council )
⇒ Wednesbury review does at least provide some protection against arbitrary decision or decisions that seem so illogical, immoral, or contrary to a common law notion of rights.
⇒ In this case, the court undertook a review of the policy in question on two separate grounds:
⇒ The outcome in Daly was that the rule on prison cell searches was both irrational on Wednesbury grounds and disproportionate on Human Rights Act grounds; in Daly there was no difference between the two different approaches. If the Human Rights Act yields the same result in Daly, it begs the question: why does administrative law need the Human Rights Act?
⇒ If proportionality review under the Human Rights Act may provide a different outcome on occasions, the implication perhaps is that the Human Rights Act can go further—perhaps much further—than common law Wednesbury review
⇒ Previous notes have already looked at this Act, but in relation to statutory interpretation and declarations of incompatibility vis-à-vis Acts of Parliament
⇒ Section 1 provides the relevant ‘Convention rights’ applicable to the Act. All the main ones are there:
⇒ So these are the Convention rights that are given domestic effect in the domestic courts.
⇒ The basis for a claim in judicial review against a public body is provided for by ss. 6-9
⇒ S.6(1):“It is unlawful for a public authority to act in a way that is incompatible with a Convention right.”
⇒ S.6(2) precludes liability where the public authority couldn’t have acted differently because of primary legislation, or where they could not have acted in a rights-compatible way for the same reason
⇒ s.6(3) defines a ‘pubic authority’ as “any person certain of whose functions are functions of a public nature…” → it excludes parliament, but includes courts and tribunal
⇒ s.6(5) “In relation to a particular act, a person is not a public authority by virtue only of s.6(3) if the nature of the act is private.”
⇒ S.7(1): “A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s.6(1) may:
⇒ s.7(3): “If the proceedings are brought on an application for judicial review, the applicant is to be taken to have sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.” → so this is the standing requirement in HRA claims
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⇒ s.8(1): “In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.”
⇒ s.8(3): “No award of damages is to be made unless, taking account of all the circumstances of the case… the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.”
⇒ Section 9 deals with the liability of the courts: decisions of courts may be reviewed under the Act, but only where the court is amenable to judicial review, or on the usual basis for appeal.
⇒ A judicial act done in good faith (but unlawfully under s.6(1)) cannot give rise to liability except where the claimant’s liberty has been deprived unlawfully, as provided for by Article 5(5) ECHR
⇒ Not all the rights in the ECHR are treated the same by the courts: some rights are better protected than others
⇒ Some rights are absolute, whilst others are qualified. Some rights may also be derogated from, whilst others cannot
⇒ The wording of rights will determine whether they are qualified or not. Article 15 ECHR states which rights are non-derogable.
⇒ Article 8 is one of the qualified rights in the ECHR and reads as follows:
⇒ Paragraph 1 of Article 8 conveys the basic right
⇒ Paragraph 2, however, qualifies the right → it says that the State may infringe upon the right where:
⇒ Whether an infringement of a right is ‘necessary’ or not requires the court to consider whether the measure is proportionate
⇒ Often proportionality review will involve appraising whether the legislative objective is an important one, whether the measures adopted are ‘rationally connected’ to the legislative objective, and whether the means adopted are no more than what is necessary to achieve the legislative objective
⇒ Evidently proportionality review is a more thorough and sophisticated form of review than Wednesbury review.
⇒ Proportionality appears to encompass those cases that Wednesbury review would cover, and more!
⇒ However, there are good reasons for retaining Wednesbury review:
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